By an application for a writ of habeas corpus appellant sought to test the validity of a warrant of arrest issued by His Excellency, The Honorable George T. Mickelson, Governor of this state. The basis for such warrant was a demand by the Governor of the State of California *Page 168 for the arrest and surrender of appellant as a fugitive from justice of that state. In support of said demand it appears that appellant, now living in this state, is charged in California with willful child desertion and that under the law of that state such offense is made a felony if the same is committed by a father not in California at the time of the desertion. Also as a part of such support it is alleged that appellant while in this state committed acts intentionally resulting in a crime in California. The record further discloses beyond dispute that appellant, while residing in that state, provided for the support of his minor children and that the desertion with which he is now charged occurred subsequent to his leaving California and coming to this state in July, 1946.
Appellant's amended application for the writ assails the validity of the extradition warrant upon the grounds (1) that the same fails to recite appellant's presence in the State of California at the time of the commission of the offense charged and his subsequent fleeing from that state; (2) that said warrant fails to substantially recite the facts necessary to the validity of its issuance, and (3) that the Governor of this State lacked authority to recognize the demand for the extradition of the applicant. The application sets forth also appellant's reasons for leaving California and coming to this state and pleads that his failure to provide for his minor children was not willful and was not without lawful excuse. Other matters therein alleged we omit to mention as the same to us appear to be unrelated to the assignments of error argued here. This appeal is from the order of the trial court dissolving the writ and remanding appellant to the custody of the arresting officer.
Under the assignment of error first argued by appellant it is contended that the warrant under review is insufficient in recitals to meet the requirement of the last clause of SDC 34.1707, i.e., that "the warrant must substantially recite the facts necessary to the validity of its issue." Specifically, as we understand appellant's position respecting this point, he asserts that to be valid the warrant of arrest should have contained a recital to the effect that appellant is charged "with committing an act in this state, * * * intentionally *Page 169 resulting in a crime in the state" of California. The words last quoted are expressions found in SDC 34.1706, the section of our code which authorizes the Governor of this state to surrender a person in this state charged with the commission of an act as therein specified. Except for the subsequent amendment thereof in 1933, this section first became a part of our law upon the adoption of the Uniform Criminal Extradition Act by the state legislature in 1929.
The recitals of the warrant here questioned are as follows: "Whereas, His Excellency Earl Warren, Governor of the said State of California, has demanded of the Governor of this State Victor Kaufman Charged with the crime of Failure to Provide for Minor Children as a fugitive from justice from the State of California and has complied with the requirements of the Act of Congress in such case made and provided; and the State of South Dakota." Therefrom it appears that appellant is sought "as a fugitive from justice" and that the Governor of California "has complied with the requirements of the Act of Congress", etc. From the form of the warrant it is obvious that the same was prepared for use only in complying with demands for fugitives from justice within the meaning of the federal extradition law. The words added thereto indicating anything more or different are found in the phrase "and the State of South Dakota."
It is conceded by respondent that appellant is not a "fugitive from justice" as that term has been repeatedly defined in cases arising under Title 18 U.S.C.A. § 662, now Title 18 U.S.C.A. § 3182. This concession disposes of appellant's first point stated above and leaves for our determination the sole question whether the warrant now outstanding substantially recites the facts necessary to the validity of its issue.
[1] It is wholly clear to us that the surrender of appellant is sought under SDC 34.1706 and not as a person who was present in the demanding state at the time of the commission of the alleged crime and who thereafter fled from the justice of that state. SDC 34.1705. In the latter case it is the duty of the Governor to issue a warrant of extradition *Page 170 under the provisions of federal law as well as under those of our code. SDC 34.1702. In such case the person to be surrendered, the factual showing being sufficient, is delivered to the demanding state as a fugitive from justice, and he is so designated and known in law. Aside from and in addition to the declared duty of the Governor with respect to those characterized by law as fugitives from justice, discretionary power is by SDC 34.1706 vested in the Governor to surrender a person not so characterized but one charged "with committing an act in this state, * * * intentionally resulting in a crime in the state whose executive authority is making the demand; * * * notwithstanding that the accused was not in that state at the time of the commission of the crime, and has not fled therefrom." From this language we think the distinction readily appears and that the power granted by this section is to be exercised in those cases only which fall clearly within the provisions thereof. A fugitive from justice, as defined by both the federal law and our code, does not come within the purview of said section.
It is worthy of note that the criminal complaint upon which a warrant of arrest was issued in California alleges in substance appellant's willful failure while in South Dakota to provide for his minor children in California and specifically "which said acts on the part of said defendant intentionally resulted in the commission of the crime * * * in the State of California". It is observed also that the application to the Governor of California for a requisition upon the Governor of this state recites the facts as set forth in the criminal complaint. However, the requisition issued thereon asserts the commission of the offense in California, the flight of appellant from the justice of that state and his taking refuge in South Dakota. The demand for his rendition is made "pursuant to the provisions of the Constitution and laws of the United States" instead of pursuant to SDC 34.1706 as was doubtless intended, and as we think should have been done in this instance. The requisition is inconsistent with the factual showing upon which the same is predicated.
The question presented is one of first impression in *Page 171 this state. Decisions of the courts of other jurisdictions reviewed by us include those reported in Commonwealth v. Heinz,141 Pa. Super. 158, 14 A.2d 875; State v. Kriss, Md., 62 A.2d 568; People v. Britt, 187 Misc. 217, 62 N.Y.S.2d 479; Rice v. Magenheimer, 225 Ind. 441, 75 N.E.2d 906; Videan v. State,68 Idaho 269, 194 P.2d 615; Ex parte Morgan, 86 Cal. App. 2d 217,194 P.2d 800, and in the cases referred to in the opinion last cited. Other cases bearing upon the question are cited in 35 C.J.S., Extradition, § 10, footnote 78. Aware of the apparent conflict of views respecting the procedure to be employed in seeking an extradition under SDC 34.1706 and like statutes, we are nonetheless satisfied that appellant is not a fugitive from justice and that he is not subject to extradition as such. Under a somewhat similar factual showing the Supreme Court of Florida in Ennist v. Baden, 158 Fla. 141, 28 So. 2d 160, so held, and we think rightly.
[2] Although appellant's objection to the warrant may be regarded as more or less technical, of substantial concern is his right under the law to be dealt with in a manner befitting the established facts. The requirement of SDC 34.1707 that the warrant substantially recite the facts necessary to the validity of its issue contemplates a service of process from which a party charged as appellant may learn, among other things, that the Governor has in fact exercised the discretion with which he is clothed under SDC 34.1706. We think we must recognize the declared distinction and sustain appellant in his asserted stand that he be surrendered, if he is to be extradited, not as a fugitive from justice, but as provided by the section of our code last cited.
[3, 4] The proceeding we review was instituted by appellant "to test the legality of the arrest" as provided by SDC 34.1710. Absent a warrant of arrest as the law requires in an instance of this kind, the sheriff or other arresting officer is without lawful authority to deprive a person of his liberty and to thereafter pass him on to an agent for removal from the state.
Our conclusions are that the outstanding warrant is insufficient and that the order appealed from should be reversed *Page 172 and the cause remanded with directions to discharge appellant from custody under said warrant. It is so ordered.
SMITH, P.J., and SICKEL and RUDOLPH, JJ., concur.